Baltimore police told not to stop people taking photos or video of their actions

Peter Hermann, The Baltimore Sun

Baltimore police officers may not "prevent or prohibit" people from taking photographs or video of crime scenes and other law enforcement activities that are in public view, according to a department-wide directive made public Friday.

The new rules essentially repeat a policy that has long been the norm, department commanders say, but which has been difficult to enforce without written guidelines. The release of the general order comes after a series of confrontations between the seemingly ubiquitous camera-wielding public and officers in Baltimore and elsewhere — including several court challenges.

In one such case, a hearing is scheduled Monday in Baltimore's federal court in a civil suit filed by a man who says a city officer took his cellphone camera and deleted video of an arrest during the 2010 Preakness Stakes.

"This is an extension of the citizen's right to see," Mark Grimes, the chief legal counsel for the Baltimore Police Department, said of the directive. An officer, he said, "wouldn't go up to a citizen at a crime scene and tell them to close their eyes, so the officer can't tell them they can't film."

How law enforcement officers deal with the army of citizen-camera operators is a contentious issue across the country, with police frequently captured — and broadcast over the Internet — in questionable situations or using what many believe to be excessive force.

A Baltimore officer was fired after being caught on tape berating a teenage skateboarder at the Inner Harbor, and a judge in Harford County threw out wiretapping charges last year against a motorcyclist who secretly videotaped his own traffic stop.

This month, a bystander caught a man assaulting a city police officer during an arrest, a tape that was used by police to highlight the dangers of the job. Still, people frequently complain that police order them to stop taking photographs or video of officers doing their jobs in public.

A schoolteacher handing out leaflets at the Inner Harbor last year said an officer ordered him to stop taking pictures and threatened to arrest him. Two police officers questioned a Baltimore Sun reporter taking pictures at a homicide scene last week but did nothing after learning he was with the media. A detective told the officers, "If he's taking pictures of my crime scene, it's evidence."

Similar agencies with camera policies — some posted on their Internet sites — include the Maryland Transit Administration and police departments in New Haven, Conn.; Philadelphia; Seattle; and Miami Beach, Fla.

Darrel W. Stephens, who is the executive director of the Major Cities Chiefs Association and on staff at the Johns Hopkins University's Division of Public Safety Leadership, said many police agencies have policies about cameras, but few have made them part of their formal rules.

"The issue is contentious because few police have been given clear guidelines," said Stephens, a former chief of police in Charlotte-Mecklenburg, N.C. "I think it's a big step for the city of Baltimore to do that."

Stephens said officers "get annoyed with things from time to time, but once they've been given instructions, the overwhelming majority will act within the spirit and the letter of the policy. … Cameras are part of our world."

Baltimore police have several caveats, however, that allow officers to seize cameras or images that may be evidence of a crime, such as a license plate of a car speeding away from an accident. Police can also stop someone using a camera who is "hindering," or preventing an officer from "a successful resolution of the police activity."

That could include, the order says, people who "on rare occasions … deliberately create hazardous conditions with the intent of provoking an inappropriate police response." The directive says those people can be warned, and possibly arrested for obstruction.

But the seven-page order warns officers that merely taking photographs or video of police activity "does not constitute probable cause and should never be the reason for any arrest." The directive says the bystander must have broken laws, such as interfering or disorderly conduct, to be put in handcuffs.

If a person declines to hand over a camera that might contain evidence of a crime, the order says that police can detain the bystander but, in most cases, must obtain a search-and-seizure warrant. The officer can take the camera temporarily, police say, but cannot access or tamper with images until a decision on the warrant is made. Officers cannot delete or view any images, and must turn them over to the department's cybercrime unit.

Grimes called the new rules the most comprehensive of any department in the area. He believes most people with cameras want to help police. "We would hope that any good citizen in the city would say, 'Sure, I saw the kid get hit and got the whole thing on tape. Can I help you?'" he said.

Despite the new rules, Baltimore police are still seeking to dismiss the federal civil lawsuit filed by Christopher Sharp, who said his camera was taken and pictures deleted at Pimlico Race Track in May 2010.

Sharp said he used his Samsung Eternity cellphone to record officers arresting a female acquaintance and one of his friends during a scuffle outside a betting window after the day's races had concluded. During the assault trial of his friend, who was acquitted, Sharp testified that a sergeant demanded his phone, saying the images were needed evidence.

"I at first refused," Sharp testified. "I did not think they had that right to take my phone. They insisted that they did have that right, it was evidence. I had to turn it over, they had to view it. … I kept arguing with them that they did not have a right. I realize, no matter what I did, I wasn't going to win."

On Monday, a judge is to determine whether the suit can proceed. Last month, the U.S. Department of Justice's Civil Rights Division filed court documents urging the judge to side with Sharp, saying the case "presents constitutional questions of great moment in this digital age."

The Justice Department said citizens need to be protected from warrantless searches and seizures, and that they have the right to "record police officers while performing duties in a public place."

Grimes, the police attorney, said the new general order is designed to address those issues, and he noted that the directives have been emailed to officers, taught in training, described in daily roll calls and put into writing.

Grimes said he provided the U.S. District Court with a copy of the general order, and court documents filed by the city in the Preakness case say the department has adequately remedied the issue. In one document, Grimes wrote that he tried, but failed, to work with the American Civil Liberties Union to draft the policy "to possibly quell the need for litigation."

The ACLU, which represents Sharp, said the department didn't offer enough time to review the proposals. The organization says in court papers that Grimes wouldn't provide the group with a final copy of the order, issued in November, unless officials agreed to sign a nondisclosure form, which it refused to do.

A Police Department spokesman said officials wanted to wait until now to release the order publicly so officers could be trained in the new directive.

Deborah A. Jeon, an attorney for the Maryland chapter of the ACLU, said she could not immediately offer an evaluation of the order. But she said her organization "is pleased that the police now finally seem to be conceding that the policy is one the public has a right to know about."

The city lawyer would not address specifics of Monday's case, but cautioned that he can present a "good argument in the courtroom" on why Sharp should lose his case. He said he will still push for a dismissal.

Said Grimes: "Despite what happened with Sharp, citizens are better off because a policy has been issued, regardless of the outcome of an individual lawsuit."

The city's attorneys argue in court documents that Sharp and his ACLU lawyers failed to prove that authorities misapplied Maryland's wiretap law and that he voluntarily handed over his phone.

"The inescapable reality for [Sharp] is that he consented to the viewing of the alleged footage on his phone, whether reluctantly or not, [and] he cannot sustain a constitutional violation claim against the [police]," according to those documents. Sharp was not arrested during the encounter.

Jeon said Sharp surrendered his phone after being surrounded by police officers and only because he felt his arrest was imminent. She said a sergeant assured him that police would copy the relevant videos and return the phone to him, but when he got it back, all his videos, including personal ones, were gone.

Upon discovery that a bystander is observing, photographing, or video recording the conduct of police activity:

1. DO NOT impede or prevent the bystander's ability to continue doing so based solely on your discovery of his/her presence.

2. DO NOT seize or otherwise demand to take possession of any camera or video recording device the bystander may possess based solely on your discovery of his/her presence.

3. DO NOT demand to review, manipulate, or erase any images or video recording captured by the bystander based solely on your discovery of his/her presence.

4. For investigative purposes, be mindful of the potential that the bystander may witness, or capture images/video of events considered at some later time to be material evidence.

5. BEFORE taking any police action which would stop a bystander from observing, photographing, or video recording the conduct of police activity, Officer(s) must have observed the bystander committing some act [deemed criminal, such as obstruction, disorderly conduct or interfering with an officer's lawful duties].